Citation Nr: 0216611
Decision Date: 11/19/02 Archive Date: 11/26/02
DOCKET NO. 99-11 868 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Medical and Regional Office
Center in Fargo, North Dakota
THE ISSUE
Entitlement to service connection for major depression.
REPRESENTATION
Appellant represented by: Mark R. Lippman, Attorney at
Law
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
L. H. Eskenazi, Counsel
INTRODUCTION
The veteran had active service from February 1969 to December
1969.
This matter comes before the Board of Veterans' Appeals (BVA
or Board) on appeal from an April 1999 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Fargo, North Dakota, which denied the benefit sought on
appeal.
This appeal was previously before the Board and denied in a
decision issued on October 18, 2000. The veteran appealed
that decision to the United States Court of Appeals for
Veterans Claims ("the Court"). In a July 2001 Order, the
Court granted the Appellee's Motion for Remand and for Stay
of Further Proceedings ("Appellee's Motion") and vacated
the Board's October 2000 decision. The appeal was remanded
back to the Board for development consistent with the
Appellee's Motion.
The Board notes that in September 2002, the veteran's
representative submitted additional evidence directly to the
Board, which consists of a psychological report dated in
August 2002, from Timothy T. Eaton, Ph.D. The Board has
reviewed that record, which contains a primary diagnosis of
post-traumatic stress disorder (PTSD). The Board notes that
the veteran had previously pursued a claim for service
connection for PTSD, but at a June 1999 RO hearing, the
veteran withdrew that claim, as he did not have a PTSD
diagnosis at that time. To the extent that the veteran may
wish the August 2002 psychological report to constitute a
request to reopen a claim for service connection for PTSD,
that matter has not been prepared for appellate review, is
not inextricably intertwined with the issue of service
connection for major depression, and is referred back to the
RO for appropriate action.
FINDINGS OF FACT
1. There has been compliance with the duty to assist and
duty to notify provisions of the Veterans Claims Assistance
Act of 2000.
2. The medical evidence does not show that any current major
depression is causally related to an incident of the
veteran's active service, or to a service-connected
disability.
CONCLUSION OF LAW
Major depression was not incurred in or aggravated by active
military service, and is not proximately due to a service-
connected disability. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107
(West 1991 & Supp. 2002); 38 C.F.R. §§ 3.102, 3.303, 3.159
(2002).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
This appeal arises out of the veteran's claim for service
connection for major depression. Essentially, the veteran
maintains that he developed depression during service, and
that he currently has depression. In the alternative, he
claims service connection for major depression as secondary
to his service-connected hyperthyroidism.
As noted in the Introduction to this decision, this appeal
was previously denied by the Board in a decision issued in
October 2000. The veteran appealed that decision to the
Court, which granted the Appellee's Motion and vacated the
Board's October 2000 decision. The matter was remanded back
to the Board for development consistent with the Appellee's
Motion. While the Board's October 2000 decision was issued
prior to enactment of the Veterans Claims Assistance Act of
2000 ("the VCAA"). Pub. L. No. 106-475, 114 Stat. 2096
(2000); 38 U.S.C.A. §§ 5103, 5103A (West Supp. 2002), the
Appellee's Motion indicated that the matter should be
remanded so that the VCAA could be applied in this case. As
the Court granted the motion, the Board will proceed with
adjudication of this appeal, in compliance with the arguments
presented in the Appellee's Motion.
On November 9, 2000, the VCAA was enacted. Pub. L. No. 106-
475, 114 Stat. 2096 (2000); see 38 U.S.C.A. §§ 5103, 5103A
(West Supp. 2002). Among other things, the VCAA amended
38 U.S.C.A. § 5103 to clarify VA's duty to notify claimants
and their representatives of any information that is
necessary to substantiate the claim for benefits. The VCAA
also created 38 U.S.C.A. § 5103A, which codifies VA's duty to
assist, and essentially states that VA will make reasonable
efforts to assist a claimant in obtaining evidence necessary
to substantiate a claim. Implementing regulations for the
VCAA were subsequently enacted, which were also made
effective November 9, 2000, for the most part. 66 Fed. Reg.
45,620, 45,630-32 (Aug. 29, 2001) (presently codified at 38
C.F.R. §§ 3.102, 3.159). The intended effect of the
implementing regulations was to establish clear guidelines
consistent with the intent of Congress regarding the timing
and scope of assistance VA will provide to claimants who file
a claim for benefits. 66 Fed. Reg. 45,620 (Aug. 29, 2001).
Both the VCAA statutes and the implementing regulations will
be collectively referred to as "the VCAA."
This case was certified and decided by the Board prior to
enactment of the VCAA. Nevertheless, the VCAA was enacted
while this appeal was pending before the Court which
determined that it was applicable to this appeal. Although
the RO did not have the opportunity to consider the
applicability of the VCAA in this appeal, the Board finds
that the requirements under the VCAA were essentially met, as
explained in more detail below. As such, there is no
prejudice in proceeding with adjudication of this appeal.
See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (when the
Board addresses a matter not addressed by the RO, the Board
must provide an adequate statement of reasons and bases as to
why there is not prejudice to the appellant).
One of the requirements under the VCAA is that VA notify a
claimant of any information or evidence that is necessary to
substantiate the claim, including which portion of evidence
the claimant should provide, and which portion VA will
attempt to obtain. 38 U.S.C.A. § 5103; Quartuccio v.
Principi, 16 Vet. App. 183, 187 (2002). A review of the
claims file reveals that in October 2002 (in compliance with
the Appellee's Motion) the Board sent the veteran a letter
notifying him of the VCAA as it impacts his appeal. That
letter informed the veteran of VA's duty to notify him of
evidence needed to substantiate and complete his claim, as
well as VA's duty to assist him in obtaining evidence
necessary to establish his claim. Additionally, the letter
notified the veteran of what VA would do to help him
establish his claim, as well as what he needed to do. The
Board finds that the foregoing letter satisfies the duty to
notify the veteran under the VCAA. See 38 U.S.C.A. § 5103;
38 C.F.R. § 3.159(b).
In addition to the foregoing, by virtue of the October 2000
Board decision, the veteran was notified of the evidence
needed to substantiate his claim. Although that decision was
vacated by the Court in July 2001, the veteran was provided a
copy of that decision and it remains a matter of record.
Moreover, although the Board's October 2000 decision
contained a brief discussion regarding well-grounded claims
(which is no longer a viable legal standard in light of the
VCAA), the Board found the veteran's claim well-grounded, and
the appeal was analyzed on the merits of the case. The Board
notes that the basic elements of service connection have not
changed over the years, see 38 U.S.C.A. § 1110 and 38 C.F.R.
§ 3.303. To that extent, the Board's October 2000 decision
put the veteran on notice as to the elements of service
connection, and why his claim for service connection failed.
Moreover, the May 1999 Statement of the Case (SOC) lists the
regulations pertaining to claims for service connection.
Those regulations remain in effect. In light of the
foregoing, the Board is satisfied that the veteran was put on
notice as to the evidence needed to substantiate his claim.
See 38 U.S.C.A. § 5103.
VA also has a duty under the VCAA to assist claimants in
obtaining evidence necessary to substantiate a claim for
benefits. 38 U.S.C.A. § 5103A. Throughout this appeal, the
RO has assisted the veteran in obtaining relevant evidence.
The record contains the veteran's service medical records, VA
treatment records, private treatment records, and lay
statements. In June 1999, the veteran testified at a hearing
before an RO hearing officer, and a copy of that hearing
transcript is in the claims file. The veteran was afforded
VA examinations in connection with this appeal, and copies of
those examination reports are in the file. Additionally, in
September 2002, the veteran's representative submitted
additional evidence and as noted above, in October 2002, the
Board sent the veteran a letter informing him of the evidence
needed to substantiate his claim, and requesting additional
information in connection with his claim, if he had any. The
veteran was given 30 days to respond to that letter, and the
letter informed him that if he submitted additional evidence
or argument within one year from the date of that letter,
that benefits may be awarded back to the date of receipt of
his claim. In response to that letter, the veteran's
representative submitted a statement in October 2002,
indicating that he and the veteran did not intend to submit
additional evidence or argument, and requesting that the
Board proceed with adjudication of the appeal. In short, the
Board finds that the duty to assist the veteran was
satisfied, and the case is ready for appellate review. See
38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c).
As referenced in the Introduction to this decision, the
veteran submitted a private psychological report in September
2002. That report contains a primary diagnosis of PTSD,
which is not the subject of this appeal, although the record
contains references to major depression. Prior to February
22, 2002, the provisions of 38 C.F.R. § 20.1304(c)(2001)
required that any additional evidence submitted by the
veteran and accepted by the Board be referred to the RO for
review and preparation of an SSOC, unless this procedural
right was waived in writing or at a hearing. That regulation
was subsequently amended, and the waiver provision
eliminated, effective February 22, 2002. See 67 Fed. Reg.
3,099 (Jan. 23, 2002); 38 C.F.R. § 20.1304 (2002). As such,
the Board may proceed with this appeal.
According to VA laws and regulations, service connection will
be granted if it is shown that the veteran suffers from a
disability resulting from an injury suffered or disease
contracted in the line of duty, or for aggravation of a
preexisting injury suffered or disease contracted in the line
of duty, in active military, naval, or air service. See 38
U.S.C.A. § 1110; 38 C.F.R. § 3.303. Secondary service
connection may be granted for a disability which is
proximately due to or the result of a service-connected
disease or injury. 38 C.F.R. § 3.310. Secondary service
connection includes instances in which an established
service-connected disorder results in additional disability
of another condition by means of aggravation. Allen v.
Brown, 7 Vet. App. 439 (1995). Where the determinative issue
in a service connection claim involves a medical diagnosis,
competent medical evidence is required. This burden cannot
be met by lay testimony because lay persons are not competent
to offer medical opinions. See Espiritu v. Derwinski, 2 Vet.
App. 492, 494-95 (1992).
The veteran's service medical records are negative for any
evidence of a psychiatric disorder. In October 1969, a
Physical Evaluation Board determined that the veteran was
unfit for duty by reason of hyperthyroidism and hepatitis.
The veteran was discharged from active duty in December 1969.
Following service separation, in a May 1970 rating decision,
the veteran was awarded service connection for
hyperthyroidism. The record following service is silent for
any evidence of a psychiatric disorder until sometime around
the early 1990's. A March 1990 private medical record from
the North Dakota Department of Human Services contains a
diagnosis of dysthymia and recurrent major depression. The
veteran reported that he had been depressed "off and on for
at least the last 20 years." He noted that his other
periods of depression were short lived, and that he could
always look forward to feeling better eventually. Private
treatment records from the St. Alexius Medical Center dated
from August 1994 to February 1997 indicate that the veteran
was treated for dysthymia. A May 1998 hospitalization record
contains a diagnosis of major depression, recurrent, severe
with suicidal thought and plan.
In December 1998, the veteran was afforded a VA examination.
The examiner indicated that he had reviewed the veteran's
medical records prior to the examination. It was noted that
the veteran had been followed for depression since 1990. The
examiner related the veteran's history of having been
hospitalized during service for nine months at the Balboa
Naval Hospital in California, for treatment of hepatitis and
a thyroid disorder. The veteran reported that he has had
significant problems with depression ever since he got out of
the service. The examiner concluded that the veteran did not
meet the criteria for PTSD, but that he appeared to have
depression. The examiner further stated that the depression
appeared "to have started prior to being discharged from the
Navy." However, he also stated "[i]t is my opinion that
[the veteran] has depression and the first signs of this
depression are right after getting out of the military."
The examiner noted that there was "no evidence in his chart
that indicates that he was treated for or discussed
depression in the Navy." He also commented that this was
fairly common as "[v]eterans often did not want to be placed
on the 'psych ward' when they were trying to get out of the
service."
In May 1999, the veteran submitted lay statements from two
friends and his brother. Each of the statements indicates
that the veteran behaved differently after his period of
service.
At a June 1999 RO hearing, the veteran testified that during
his nine month hospitalization in service, he was exposed to
many sick and dying soldiers, which caused him to feel
depressed and anxious. The veteran described his
hospitalization as being in jail. The veteran noted that he
did not seek treatment for his symptoms until approximately
1987 or 1988. In August 1999, the veteran submitted copies
of two letters sent to him in 1969. Those letters refer to
the veteran being depressed.
In September 1999, the veteran underwent an additional VA
examination, conducted by a VA staff psychiatrist. The
examiner reported the veteran's history of having been
hospitalized in service for nine months, during which time he
saw many wounded soldiers, including dismembered soldiers.
The veteran complained of having depression, consisting of
low mood, difficulty with concentration, and feeling of
worthlessness. The veteran reported having panic attacks and
flashbacks. The veteran demonstrated a depressed mood. He
was diagnosed with major depressive disorder, recurrent. The
examiner indicated that the veteran did not have PTSD. He
also indicated that the veteran's major depressive disorder
was not
related to his active service, and that there was no
connection to his hyperthyroidism.
The record contains an August 2002 private psychological
report from Timothy T. Eaton, Ph.D., a clinical psychologist.
He reported that according to the veteran, he began
experiencing flashbacks within a few years of his military
service. He indicated that he was numb to these flashbacks
for several years, and then began experiencing increased
feelings of depression. The veteran had worked for the post
office for several years, and was medically retired in 1996
due to the severity of his depression. The examiner
indicated that the veteran's pattern of psychological testing
was highly predictive of someone suffering from PTSD, and
that the veteran's condition was not improving. The
concluding diagnosis was PTSD, chronic and severe, and major
depression, recurrent. The examiner indicated that the
veteran's history of working as an orderly with severely
wounded combat veterans played a role in the development of
his emotional and interpersonal pathology, as some veterans
with the highest rates of PTSD were not always those with
direct combat experiences, but those working with the dead
and wounded.
The Board has thoroughly reviewed all the evidence of record,
as summarized above. There is adequate medical evidence of
record that the veteran has a current diagnosis of major
depression. However, the Board is not persuaded by the
evidence of record that the veteran's major depression is
directly related to his active service, or is proximately due
to his service-connected hyperthyroidism. The record is
negative for any medical evidence that the veteran's major
depression is causally linked to his service-connected
hyperthyroidism, despite the veteran's contentions in this
regard. Rather, the September 1999 VA medical opinion
concludes that there is no connection between the veteran's
major depression and his hyperthyroidism. As such, there is
no basis to establish service connection for major depression
as secondary to the veteran's service-connected
hyperthyroidism. See 38 C.F.R. § 3.310(a).
In regard to principles of direct service connection, the
Board emphasizes that the veteran's service medical records
are negative for any findings of a psychiatric disorder, and
the first medical evidence of a psychiatric disorder
following service separation is not until 1990.
Nevertheless, the Board notes that service connection may be
granted for any disease diagnosed after service when all the
evidence establishes that the disease was incurred in
service. 38 C.F.R. § 3.303(d).
In the present case, there are essentially two VA medical
opinions of record regarding the etiology of the veteran's
major depression. The December 1998 VA opinion is somewhat
contradictory, in that the examiner first states that the
veteran's depression appears to have started prior to
discharge from service, but he later concludes with an
opinion that the first signs of the veteran's depression were
"right after getting out of the military." The September
1999 VA medical opinion concluded that the veteran's major
depression had no relationship to service. The Board is
persuaded by the evidence indicating that there is no direct
causal relationship between the veteran's major depression
and his active military service. To the extent that the
December 1998 VA medical opinion appears contradictory, the
Board finds that the September 1999 VA medical opinion is
clear, and the Board is more persuaded by that opinion. The
Board notes that the September 1999 VA examination was
conducted by a VA staff psychiatrist, while the December 1998
VA examination was conducted by a resident physician. The
December 1998 medical opinion appears to be based on the
veteran's report of his own history, rather than based on
facts in the record. For the foregoing reasons, the Board is
more persuaded by the September 1999 VA medical opinion,
which concludes that the veteran's major depression is not
related to service.
The Board acknowledges the findings in August 2002 private
psychological report from Dr. Eaton. That report contains a
diagnosis of both major depression and PTSD. Dr. Eaton
opines that the veteran's reported stressful experiences
during service may have contributed to his current emotional
and interpersonal pathology. However, Dr. Eaton appears to
be referring to the veteran's current diagnosis of PTSD,
which is not an issue currently before the Board. As noted
in the
Introduction to this decision, to the extent the veteran
wishes to pursue a new claim for PTSD, that matter is
referred back to the RO.
The Board's responsibility is to assess the credibility and
weight given to the evidence. See Guerrieri v. Brown, 4 Vet.
App. 467, 470-471 (1993) (the probative value of medical
evidence is based on the physician's knowledge and skill in
analyzing the data, and the medical conclusion the physician
reaches; as is true of any evidence, the credibility and
weight to be attached to medical opinions are within the
province of the Board). In this case, the Board finds that
the opinion provided by the VA examiner in September 1999 is
persuasive in the conclusion that the veteran's major
depression is not related to his active service or to his
service-connected hyperthyroidism. It is apparent that the
VA examiner considered the veteran's medical history and
current complaints in reaching his conclusion. The Board
finds the VA examiner's opinion probative in this appeal, as
described above. The December 1998 VA medical opinion
suggests that the veteran's depression may have started prior
to being discharged from the Navy, but he then contradicts
that point by concluding that the first signs of the
veteran's depression began right after getting out of the
military. The Board finds that the December 1998 opinion to
be less persuasive then the analysis provided in the
September 1999 opinion and that latter opinion does not
support a claim for service connection. In short, the Board
finds that the preponderance of the evidence is against the
veteran's claim for service connection for major depression,
in that the medical evidence does not provide a definitive
link between the veteran's major depression and his active
service. Once again, the separate question of service
connection for PTSD, which was the subject of the opinion
submitted by the veteran's representative in September 2002,
has been referred to the RO for appropriate action. The
Board finds that this opinion focused on PTSD and did not
link the veteran's major depression to service.
The Board fully acknowledges the veteran's statements of
record and his testimony that he developed major depression
as a result of seeing injured soldiers while he was
hospitalized during service. The Board also acknowledges the
statements submitted by the veteran's friends and brother, as
well as the letters sent to him in service. The Board
recognizes the veteran's sincere belief in the merits of his
claim, and the Board does not doubt the sincerity of the
statements and letters. Nevertheless, for the reasons
discussed above, the Board finds that the preponderance of
the medical evidence of record is against a finding that the
veteran's major depression is causally related to his active
service, or proximately due to his service-connected
hyperthyroidism. As a lay person, without medical expertise
or training, the veteran is competent to testify that he has
experienced feelings of depression over the years. However,
his opinions as to medical etiology or causation (as well as
opinions from his friends and relatives) are not competent
medical evidence, which is required to establish service
connection. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-
95 (1992) (laypersons may be competent to provide an "eye-
witness account of a veteran's visible symptoms," but they
are not capable of offering evidence that requires medical
knowledge). Medical evidence is needed to establish service
connection, and in the present case, as discussed, the Board
finds that the weight of the probative medical evidence in
this case is against the veteran's claim.
In conclusion, for the reasons outlined above, the Board
finds that the preponderance of the evidence is against a
claim for service connection for major depression, to include
as secondary to service-connected hyperthyroidism, and the
appeal is denied. The Board has considered the "benefit of
the doubt" rule, but because the evidence is not in relative
equipoise, that doctrine is not applicable in this case. See
Ferguson v. Principi, 273 F.3d 1072 (Fed. Cir. 2001)
(38 U.S.C.A. § 5107(b) only requires that the Board consider
all the evidence and material of record; the benefit-of-the-
doubt provision only applies where there is an approximate
balance of positive and negative evidence).
ORDER
Service connection for major depression is denied.
STEVEN L. COHN
Member, Board of Veterans' Appeals
IMPORTANT NOTICE: We have attached a VA Form 4597 that tells
you what steps you can take if you disagree with our
decision. We are in the process of updating the form to
reflect changes in the law effective on December 27, 2001.
See the Veterans Education and Benefits Expansion Act of
2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the
meanwhile, please note these important corrections to the
advice in the form:
? These changes apply to the section entitled "Appeal to
the United States Court of Appeals for Veterans
Claims." (1) A "Notice of Disagreement filed on or
after November 18, 1988" is no longer required to
appeal to the Court. (2) You are no longer required to
file a copy of your Notice of Appeal with VA's General
Counsel.
? In the section entitled "Representation before VA,"
filing a "Notice of Disagreement with respect to the
claim on or after November 18, 1988" is no longer a
condition for an attorney-at-law or a VA accredited
agent to charge you a fee for representing you.